Qualified Immunity: An Invention of Judicial Activism

by | Jun 15, 2020

Qualified Immunity: An Invention of Judicial Activism

by | Jun 15, 2020

Warren Supreme Court

Qualified immunity is a legal doctrine that shields cops from liability for actions taken in the line of duty unless they violate rights “clearly established” by existing judicial precedent. No statute exists granting qualified immunity. It evolved over time based on a series of Supreme Court cases.

In practice, qualified immunity makes it extremely difficult to prosecute police officers for using excessive force or committing other acts of misconduct. As Supreme Court Justice Byron White wrote in the 1986 case Malley v. Briggs, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Reuters called it “a highly effective shield in thousands of lawsuits seeking to hold cops accountable for using excessive force.”

But how did we end up with qualified immunity in the first place? The legal doctrine evolved over time thanks to federal judicial activism and was applied to every police department in the United States through the incorporation doctrine. The very existence of qualified immunity reinforces an ugly truth. We can’t trust the federal government to protect our rights. It almost always defers to government power.

We can trace the origins of qualified immunity back to the Civil Rights Act of 1871. The act was codified into law by 42 U.S. Code §1983—“Civil action for deprivation of rights.” In effect, it allows any U.S. citizen to sue a state or local official in federal court for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”

This was one of the first federal laws passed based on the 14th Amendment. The statute arguably overreaches the intent of the 14th. Regardless, for the first time, it created an avenue for individuals to hold state officials accountable through the federal courts.

Although §1983 did not specifically provide for an immunity defense, lawyers for government officials often argued for immunity based on common law, arguing it was implicit in the statute. Early on, immunity defenses were built on a case-by-case basis and not based on settled federal court precedent. But in the 1967 case Pierson v. Ray, the Supreme Court cemented the doctrine of qualified immunity into federal jurisprudence. The Court held that government officials who violate the law or constitutional limits on power in “good faith” can raise “qualified immunity” as a defense.

Chief Justice Earl Warren wrote the majority opinion.

“Under the prevailing view in this country, a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved. A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.”

The next step forward for qualified immunity came in the 1971 case Bivens v. Six Unknown Named Agents. The case opened the door for individuals to sue federal government officials for violations of rights given that §1983 only applied to state and local officials. Justice William Brennan wrote, “While there is no explicit right to file a civil lawsuit against federal government officials who have violated the Fourth Amendment, this right can be inferred. This is because a constitutional protection would not be meaningful if there were no way to seek a remedy for a violation of it.”

In 1982, Harlow v. Fitzgerald established qualified immunity for federal government officials and set the stage for the current definition of qualified immunity. The Court held that government actors are entitled to qualified immunity due to “the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority.”

“Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” [Empashis added]

Today, courts analyze qualified immunity cases under a three-part test established in Graham v. Connor (1989). Ilan Wurman explained the test in a paper titled Qualified Immunity and Statutory Interpretation published by the Seattle Law Review.

“The test requires courts to undertake an objective analysis of the circumstances surrounding the use of force. Even if a court decides that the use of force was unreasonable and thus unconstitutional, the second step of the inquiry is the qualified immunity analysis: Was it ‘clearly established‘ that this kind of force in this kind of circumstance is unconstitutional? If not, the officer escapes liability.” [Emphasis added]

Grahm also established that all police excessive force cases involving arrests, searches, or investigatory stops must be evaluated under the Fourth Amendment, not the due process clause of the 14th.

Wurman argues that the “clearly established” test erects an almost insurmountable hurdle to those trying to prove excessive force or a violation of their rights.

“The qualified immunity test poses an almost insurmountable analytical problem—the permutations are infinite. A given situation is rarely exactly like another. There will always be sufficient distinguishing facts to decide that there was no clearly established law.”

Bivens and subsequent cases all involved federal government officials, but eventually, the court effectively abandoned the statutory process in §1983 and began hearing cases against state agents directly under the Constitution. As Wurman explained, “Immunity doctrine traditionally looked to the common law to derive immunities in §1983 cases. This approach was lost, quite possibly as a result of historical accident, as the Court began to hear Bivens actions directly under the Constitution and not under any statute.”

Later, he writes, “[The Court] subsequently invented immunity doctrine out of whole cloth in other federal-officer cases and exported that doctrine to the §1983 cases rather than importing the relevant doctrine from the state-officer cases.”

The rationale for federalizing state and local police misconduct cases was good-intentioned. When Congress passed the Civil Rights Act of 1871, it was next to impossible for African-Americans to get a fair shake in many state courts and government officials could abuse their rights with virtual impunity.

But the end-result of centralizing power in the federal government was worse. Now it’s next to impossible for any person in any state to get a fair shake when challenging police misconduct. The federal courts have cemented a system in place that gives law enforcement officers almost complete immunity and allows them to violate any individual’s rights with virtual impunity.

Through the incorporation doctrine that applies the federal Bill of Rights to state and local governments, this system protects police officers in every city, county and state in the U.S. from Honolulu, Hawaii to West Quoddy Head, Maine.

A decentralized system where cases were heard under state law and state constitutions would undoubtedly have problems. Some states would probably extend almost complete protection to law enforcement officers just like the federalized system. But surely some would be better.

The lesson here is pretty clear. Government protects its own. Centralized power almost never benefits the average person in the long-run. And we cannot count on federal courts to protect our rights.

This article was originally featured at the Tenth Amendment Center and is republished with permission.

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About Michael Maharrey

Michael Maharrey [send him email] is the communications director for the Tenth Amendment Center. He also runs GodArchy.org, a site exploring the intersection of Christianity and politics. Michael is the author of the book, Constitution Owner's Manual: The Real Constitution the Politicians Don't Want You to Know About. You can visit his personal website at MichaelMaharrey.com, like him on Facebook HERE and follow him on Twitter @MMaharrey10th.

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